N.M. Stat. § 45-2-402 (2026)

A decedent's surviving spouse is entitled to a family allowance of thirty thousand
dollars ($30,000). If there is no surviving spouse, each minor child and each dependent
child of the decedent is entitled to a family allowance amounting to thirty thousand
dollars ($30,000) divided by the number of minor and dependent children of the
decedent. The family allowance is exempt from and has priority over all claims against
the estate. Family allowance is in addition to any share passing to the surviving spouse
or minor or dependent children by intestate succession or by the decedent's will, unless
otherwise provided by the decedent in the will or other governing instrument.

History: 1953 Comp., § 32A-2-402, enacted by Laws 1975, ch. 257, § 2-402; repealed
and reenacted by Laws 1993, ch. 174, § 20; 1995, ch. 210, § 7.

                                    ANNOTATIONS

Official comments. — See Commissioners on Uniform State Laws official comment to
2-402 UPC.

Repeals and reenactments. — Laws 1993, ch. 174, § 20 repealed former 45-2-402
NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-402, relating to personal property
allowances, and enacted a new section, effective July 1, 1993.

Compiler's notes. — This section includes within its scope some of the functions of
former 31-4-1, 1953 Comp.

Cross references. — For allowance of claims by court, after petition or proceedings,
see 45-3-806 and 45-3-807 NMSA 1978.

For rules governing garnishment and writs of execution in the district, magistrate and
metropolitan courts, see 1-065.1, 2-801 and 3-801 NMRA, respectively.

For form for claim of exemptions on executions, see 4-803 NMRA.

For form for order on claim of exemption and order to pay in execution proceedings, see
4-804 NMRA.

For form for application for writ of garnishment and affidavit, see 4-805 NMRA.

For form for notice of right to claim exemptions from execution, see 4-808A NMRA.

For form for claim of exemption from garnishment, see 4-809 NMRA.
The 1995 amendment, effective July 1, 1995, substituted "thirty thousand dollars
($30,000)" for "fifteen thousand dollars ($15,000)" in the first and second sentences
and, in the last sentence, inserted "by intestate succession or" and substituted "by the
descendant in the will or other governing instrument" for "or by intestate succession" at
the end.

Death of surviving spouse prior to distribution of statutory allowances. — The
legislature did not intend that statutory allowances, which are not claimed prior to the
death of the surviving spouse, be transferred from the decedent’s estate to the estate
and heirs of the surviving spouse. Duran v. Vigil, 2012-NMCA-121, 296 P.3d 1209, cert.
denied, 2012-NMCERT-011.

Decedent's estate was entitled to family and personal property allowances when
claim for allowances was made prior to decedent's death. — Where husband died
intestate, survived by his wife, and where wife, appointed as sole personal
representative of husband's estate, claimed a community lien against a tract of
husband's land (west tract) due to improvements made to the property while wife was
married to husband, and where wife also exercised her claim for a spousal allowance
and a personal property allowance against the west tract, and where petitioner objected
to any allowances against any property identified as separate property, and where wife
passed away prior to a trial scheduled to resolve the issues, and where respondent, the
personal representative of wife's estate pursued wife's claims of family and personal
allowances and the community lien against the west tract, and where the district court,
following a bench trial, held that wife's estate was not entitled to family and personal
property allowances even though wife would have been entitled to those allowances
during her lifetime, the district court erred in denying respondent's request for the
allowances, because wife claimed the allowances before she died and while she was
the surviving spouse of husband. In re Estate of Kuchan, 2024-NMCA-032.

Transfers outside of a will cannot offset or preclude the statutory allowances. Bell
v. Estate of Bell, 2008-NMCA-045, 143 N.M. 716, 181 P.3d 708, cert. quashed, 2008-
NMCERT-004, 144 N.M. 47, 183 P.3d 932.

Policy against waiver. — The policy behind the statutory allowance of family
allowance argues against finding a waiver in the absence of clear explicit language.
Salopek v. Hoffman, 2005-NMCA-016, 137 N.M. 47, 107 P.3d 1, cert. denied, 2005-
NMCERT-002, 137 N.M. 265, 110 P.3d 73.

Where terms of post-nuptial agreement are too general and too ambiguous, the
agreement will not support a finding of waiver of the family allowance. Salopek v.
Hoffman, 2005-NMCA-016, 137 N.M. 47, 107 P.3d 1, cert. denied, 2005-NMCERT-002,
137 N.M. 265, 110 P.3d 73.

Entitlement to allowances. — The surviving spouse is entitled to the allowances
provided under this section and 45-2-403 NMSA 1978 notwithstanding contrary
intentions expressed in the deceased spouse's will. Brito v. Jewell, 2001-NMCA-008,
130 N.M 93, 18 P.3d 334.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 97 C.J.S. Wills §§ 1262, 1280, 1287.